Jackman v. Second School District in Salisbury , 71 Mass. 413 ( 1855 )

Thomas, J.

There is one point which settles this case. Before the assessment of the tax, the plaintiff had been set off into another district, and was not therefore liable to be taxed in the old one. This point is distinctly decided in Richards v. Dagget, 4 Mass. 534. The case of Waldron v. Lee, 5 Pick. 323, affirms the doctrine of Richards v. Dagget, as to the time when the liability is fixed. “ We think,” say the court, “ the better ground is, that no individual debt is incurred until the assessment is made.” 5 Pick. 332, 333. Again: “ We consider further, that the inhabitants set off were charged with the taxes legally voted and assessed before the separation, and are now liable for the same; the debt being fixed by the assessment.” 5 Pick. 335. We know of no subsequent case that impairs the effect of these decisions.

The suggestion is made, that since the case of Richards v. Dagget districts have been invested with new powers. This is so; but we do not perceive that the power of towns to create, alter or abolish school districts has been impaired, with the exception that towns cannot be districted anew, so as to change the taxation of lands of proprietors into districts using different schoolhouses, oftener than once in ten years. St. 1849, c. 206. See also St. 1851, c. 303.

On the other hand, the legislature, as well as the court, have recognized this power of towns as existing in full force. Rev. Sts. c. 23, § 24. Sts. 1850, c. 286; 1852, c. 199; 1853, c. 153. Perry v. Dover, 12 Pick. 206. Allen v. School District in Westport, 15 Pick. 35. Alden v. Rounseville, 7 Met. 218.

This tax was not assessed until after the plaintiff had been set off to a new district. The assessors, or a majority of them, met in the forenoon before the town meeting of October 10th at which the district was formed, commenced revising the list of persons in the district, liable to taxation, and went so far as to strike two polls from the list. This was merely preliminary. Nothing further was done till October 15th. And the bill of exceptions expressly finds that the assessment was not completed till November 1st. The list referred to in the bill of exceptions could not be the list to be committed to the collector. That could only be made when the assessment was complete.

If the plaintiff was not liable to be taxed at all, it becomes unnecessary to consider the other questions raised by the exceptions.

Exceptions overruled.